Alexandra Milonas v Telstra Corporation Limited t/a Telstra
[2018] FWCFB 1683
•26 MARCH 2018
| [2018] FWCFB 1683 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Alexandra Milonas
v
Telstra Corporation Limited t/a Telstra
(C2017/7228)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 26 MARCH 2018 |
Permission to appeal against decision [2017] FWC 6359 of Commissioner Cambridge at Sydney on 8 December 2017 in matter number U2017/4027 – public interest not enlivened – permission refused.
1. Introduction
[1] Ms Alexandra Milonas (the Appellant) was dismissed from her employment with Telstra Corporation Limited t/a Telstra (Telstra; the Respondent) on 23 March 2017 and subsequently lodged an application for an unfair dismissal remedy.
[2] The Appellant’s application was heard by Commissioner Cambridge on 24 July, 6 and 7 November 2017 and a decision was issued on 8 December 2017. 1 In the Decision the Commissioner determined that the Appellant’s dismissal was not unfair and dismissed the application. The Appellant has applied for permission to appeal that decision.
[3] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the FW Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.
2. The Decision
[4] The Appellant’s principal contention in the proceedings at first instance was that over a lengthy period of time the performance targets set for her by Telstra were unreasonable and that her failure to achieve those targets was unfairly used as the principal basis for the termination of her employment.
[5] The Decision sets out the background to the proceeding (at [5]-[26]). There is no challenge to this aspect of the Decision. The relevant statutory provisions are then set out (at [44]-[46]) and the Commissioner then turns to deal with whether the dismissal was harsh, unjust or unreasonable.
[6] In considering whether the Appellant’s dismissal was ‘harsh, unjust or unreasonable’, the Commissioner took into account the matters set out at s.387(a)-(h) as follows:
• There was a valid reason for the dismissal of the Appellant ‘for reasons relating to ongoing unsatisfactory work performance’ (see [47]-[62]);
• As to whether the Appellant was notified of the reason for the dismissal (s.387(b)), the Commissioner held (at [63]):
‘The employer provided verbal advice of dismissal at the resumption of the 2016 PSA review meeting held on 23 March 2017. Shortly thereafter written notification of the reason for the applicant's dismissal was provided which included detailed aspects of the applicant’s underperformance.’
• As to whether the Appellant was given an opportunity to respond (s.387(c)), the Commissioner found that ‘the evidence established that the Applicant had been provided with an opportunity to respond to the performance inadequacies identified during the 2016 PSA review meeting’ (see [64]);
• As to whether there was any unreasonable refusal by Telstra to allow the Appellant to have a support person present (s.387(d)), the Commissioner held that ‘there was no suggestion that the applicant was not offered the assistance of a support person…’ and noted that the Appellant was assisted by a Union representative during the 2016 PSA review meeting held on 23 March 2017 (see [67]);
• As to whether the Appellant had been warned (s.387(e)), the Commissioner found (at [68]):
‘In this instance where the applicant was dismissed for ongoing unsatisfactory work performance, there was ample evidence of warning to the applicant. The applicant had been provided with two formal written warnings. Further, the applicant gave evidence that she understood the seriousness of the performance management processes, and that she was engaged in a process that would potentially lead to the termination of her employment.’
• As to the size of the Respondent’s business (s.387(f)), the Commissioner found that Telstra is a large business and the size of its operation ‘would not have been likely to have significant impact on procedures surrounding the dismissal of the applicant’ (see [69]);
• The Commissioner found that Telstra did have dedicated employee relations management specialists (s.387(g)) and there was evidence that they were involved at various times during the performance management process and the process leading to the dismissal of the Appellant (see [70]);
• The Commissioner dealt with other relevant matters (s.387(h)) (at [71]-[73]), including the Appellant’s personal circumstances and held at [73]:
‘In this instance, consideration of the personal circumstances of the applicant, in particular her extensive period of service with Telstra, has been balanced and evaluated together with all of the other relevant considerations. In particular, the personal circumstances of the applicant and the unfortunately perfunctory process adopted by Telstra during the 2016 PSA meeting, have been matters that have been given appropriate weight and balanced against, in particular, the valid reason for dismissal.’
[7] The Commissioner then concluded that the dismissal was not unfair and dismissed the Appellant’s application.
3. The Appeal
[8] The grounds of appeal are set out below:
• Ground 1 – The Commissioner erred, as a significant finding of fact, that Ms Milonas had not had unreasonable work targets imposed upon her.
• Ground 1A – The Commissioner failed to give reasons or sufficient reasons for his finding that the Appellant had not had unreasonable work targets imposed on her.
• Ground 2 – The Commissioner having noted that the Respondent failed to properly conduct the final interview erred in not finding that to treat that fact, in combination with the surrounding circumstances, as requiring a finding that the Applicant’s dismissal was harsh, unjust or unreasonable.
• Ground 3 – The Commissioner erred in failing to have proper regard to the harshness of Ms Milonas’ dismissal having regard to her long period of satisfactory service, the breadth of her services to the Respondent and her personal circumstances.
• Ground 3A – The Commissioner erred in having regard to a matter, being a conversation said to have occurred on 23 November 2016, which was not relied upon by the Respondent as either a ground of, or justification for, the dismissal of the Appellant and in so relying on the said conversation without notice to the Appellant, so as to deprive the Appellant of the opportunity to address the matter.
[9] At the hearing counsel for the Appellant advised that Ground 3A was no longer pressed 3 and hence we need not consider it further.
[10] The Appellant also submitted that the following matters enlivened the ‘public interest’:
• Whether or not an employee’s personal circumstances are a matter to be had regard to in determining whether a dismissal is harsh, unjust or unreasonable.
• Whether a long period of satisfactory service can render a dismissal harsh, unjust or unreasonable.
• Whether the imposition of unreasonable targets by an employer is itself a ground to find that a dismissal was harsh, unjust or unreasonable.
[11] We now turn to deal with the grounds of appeal.
[12] Grounds 1 and 1A contend that the Commission made a significant error of fact in finding that the work targets imposed on Ms Milonas were not unreasonable and that he failed to give any (or any sufficient) reasons for his finding. The Commissioner deals with this issue at [54] and [61]:
‘[54] In any event, the evidence has not established that the sales performance target figures were unreasonable or unrealistic. The applicant was provided with considerable assistance and training, and at her request the final sales target figures that were used in the 2016 PSA were adjusted so that they were more favourable to the applicant.
[61] In summary, an analysis of the various aspects of the ongoing unsatisfactory work performance of the applicant has established that there was valid reason for dismissal. A further examination of the evidence has not supported the challenge made to the alleged unreasonable sales target performance requirements that the applicant failed to achieve. Further, particular conduct on the part of the applicant was, at best, not conducive to the continuation of the employment relationship.’
[13] Earlier in the Decision the Commissioner made the following observations relating to the relevant work targets:
‘[8] The applicant raised concerns about the allocation of the not-for-profit portfolio as she understood that it represented a “dud” portfolio because it included a large number of customers and potential customers that were unlikely to generate significant sales opportunities or volumes. The applicant complained that the not-for-profit portfolio required increased work load for lower sales returns both in terms of volume and sales revenues achieved.
[9] The role of an MSS involved a requirement to meet an annual sales target figure which included sales revenue from retained existing services combined with an incremental sales revenue obtained from sales of new services to either existing customers or new Telstra customers. The applicant found it increasingly difficult to achieve her annual sales targets having been assigned the not-for-profit portfolio. The applicant believed that the sales target figures that were set for her in the not-for-profit portfolio were unrealistic…
[11] During 2013, the applicant raised ongoing complaints about her customer portfolio with her then Manager and immediate superior, Mr Bates. The applicant was not achieving her sales target figures, and various discussions occurred between the applicant and Mr Bates concerning the applicant not meeting sales performance expectations. In response to the complaints made by the applicant, Mr Bates allocated a new customer (NSW Health) to the applicant’s portfolio. However, the applicant did not experience any significant sales performance improvement from the allocation of NSW Health to her customer portfolio as she encountered considerable difficulties with securing the business of particular entities within the NSW Health group…
[13] By November 2014, the applicant had not moved from the MSS position, and Mr Bates commenced an informal performance management process for the applicant. Although there was an initial improvement in the applicant’s sales performance (72% achieved for a target of 80%), which was recognised in January 2015, Mr Bates observed a subsequent deterioration in the applicant’s sales performance, and he placed her on a formal Performance Support Agreement (the 2015 PSA) on 16 February 2015.
[14] The timeframe for the 2015 PSA was extended partly as a result of the applicant’s deteriorating health and her consequent absences from work. Towards the end of April 2015 the applicant declined to participate in one-on-one meetings with Mr Bates which were held as part of the 2015 PSA, and she advised Mr Bates that the performance management process was causing her considerable stress and anxiety.
[15] On 26 May 2015, Mr Bates issued the applicant with a written warning regarding her performance and following on from a review of the 2015 PSA. This written warning recorded that the sales performance achieved by the applicant was 56% of an 80% target. Further, the written warning advised that the 2015 PSA would be further reviewed on 22 June 2015, and in the absence of improvement in sales performance, Telstra may take further action which could include termination of the applicant’s employment.’
[14] The adjustment of the Appellant’s sales targets is also dealt with at [55]:
‘[55]During cross-examination, the applicant seemed to reluctantly accept that the sales target in the 2016 PSA had been adjusted for her benefit, and she acknowledged that she had reached only 73% as opposed to the target of 90% of the adjusted figure. The following extract from transcript provides an example of evidence that supports that the sales target figures were not unreasonable, but instead, were determined with some leniency and intent to assist the applicant achieve the target outcome:
‘“He measured me on a $9.5 million sales target, but the performance support agreement actually had a sales target of 6.5 that I was measured, which I achieved 73% of.
MR DARAMS: I want to suggest to you that in fact what Mr Moynahan did was reduce your sales target to assist you? --- It wasn’t reduced. It was actually a more accurate figure from - based on the $12.8 million customer portfolio, $6.5 million was more favourable to me. I had to accept that - - -”’
[15] In the proceedings at first instance the evidence about the reasonableness of the Appellant's sales targets included the following:
(i) that the customers in the Appellant's portfolio, such as the Not For Profit sector, were of importance to the Respondent (Mr Bates described it as being ‘of huge significance to Telstra’) 4 and included a number of significant customers (such as the Salvation Army and Mission Australia);5
(ii) that the Respondent put in place a process to assist the Appellant in meeting her sales targets, including a weekly cadence session, a weekly one-on-one coaching session and the requirement that the Appellant provide a weekly report; 6
(iii) the Respondent took a number of steps to assist the Appellant in meeting her performance objectives, as Mr Moynahan put it he ‘tried to remove the perceived roadblocks which were holding her back in order to help her’. 7 Such steps included removing customers from the Appellant's sales target (and thereby reducing the Appellant's sales target). These steps reduced the Appellant's incremental sales target from $9.5 million to $6.502 million;8
(iv) the Appellant's sales targets were consistent with the sales targets for other employees with similar portfolios. The other employees with similar sales targets were achieving and exceeding their sales targets; 9
(v) a breakdown of the revenue sales targets and incremental sales targets across the Enterprise Mobility team which the Respondent contended demonstrated that the Appellant's targets were not unreasonable or unrealistic but were consistent with the sales targets allocated to the other eight Mobile Sales Specialist (MSS) in the team, particularly those in the New South Wales team; 10
(vi) the Appellant's portfolio with a revenue base of $23.39 million was not disproportionate to her colleagues targets who were targeting similar customers; 11 and
(vii) targets are allocated as part of a national target and on this basis the Respondent submitted that there was no incentive to give a team member an unreasonable target that they could not reach as this would adversely impact the team overall. 12
[16] We are not persuaded that the Commissioner made a significant error of fact in finding that the work targets imposed on Ms Milonas were not unreasonable. The challenged finding was reasonably open to the Commissioner on the evidence before him.
[17] It is also relevant to observe that the assessment of the Appellant’s work performance was not confined to the sales targets which are the subject of Grounds 1 and 1A. As the Commissioner observed, at [48]-[50]:
‘[48] Although the applicant complained that the particular sales targets figures that had been set for her were unrealistic and unreasonable, the applicant’s work performance was assessed upon a number of factors of which sales target achievement levels was but one component. Importantly, in addition to reaching 90% of sales target figures, the 2016 PSA required the applicant to undertake various activities which included, inter alia, the production of regular reports, the development of strategic planning documentation, and the construction and presentation of sales forecasting materials.
[49] Consequently, if the applicant had met all the other factors upon which her work performance was assessed, then she would have been in a strong position to challenge the legitimacy of the reason for her dismissal because the dismissal would have been solely based upon the failure to reach 90% of the established sales target figure. In such circumstances, if the applicant established that the 90% achievement of the sales target figure was an unreasonable requirement, then the failure to meet such an unreasonable requirement would not represent valid reason for dismissal.
[50] However, unfortunately for the applicant, the evidence has established that her performance failures were not confined to an underachievement of established sales target figures. Perhaps the most revealing account of the specific performance failures of the applicant in areas other than sales target figures achievement was obtained from the answers provided by Mr Moynahan when he was cross-examined on this question by Mr Rogers. The following extract from the transcript of proceedings is provided as an example:
‘“You’ve spoken at a level of some generality about those. What precisely was it that she wasn’t doing? --- She didn’t provide a weekly report.
Right? --- The territory plan was not done. When asked on I think formal request for the territory was about five or six. That was not completed. My future, so that’s just about leadership, how we actually improve. That was done with headlines - there was no content. The forecasting, there was no - I had no confidence in the information going to my superiors with the forecasting and information that she provided.”’
[18] Nor are we persuaded that the Commissioner failed to give any (or any sufficient) reasons for his finding.
[19] It needs to be remembered that the Commissioner was under a statutory obligation to deal with Ms Milonas’ application in a manner that was, relevantly:
‘(a) is fair and just; and
(b) is quick, informal and avoid unnecessary technicalities.’ (s.577)
[20] As Buchanan J observed in Coal Allied Services Pty Ltd v Lawler and others:
‘…it is an important aspect of the work of FWA, at all levels including on appeal (as it was of its statutory predecessors), that it is to proceed without unnecessary technicality and as informally as the circumstances of the case permit. FWA is not a court and its members are not judicial officers as such (although the President has the same status as a judge of this Court and some senior members of FWA retain an equivalent status from earlier statutory arrangements). It is not inappropriate to say that the members of FWA have a statutory mandate to get to the heart of matters as directly and effectively as possible.’ 13
[21] In his decision, the Commissioner specifically addressed the reasonableness of the targets imposed on the Appellant (see [55] of the Decision). In this context, it was open to the Commissioner to canvass the evidence in summary form (at [5] to [26]); to set out the substance of the Appellant's and Respondent's arguments at ([27] to [43]); and to reach the conclusion that the Appellant's targets were not unreasonable or unrealistic (see [47] and [48] of the Decision).
[22] The Commissioner’s reasons articulated the essential grounds for reaching his decision and addressed the material questions of fact and law in a manner which disclosed his reasoning process. As the Full Bench observed in Barach v University of New South Wales:
‘…the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.’ 14
[23] Ground 2 contends that the Commissioner erred in not finding that the failure of Telstra to properly conduct the final interview with Ms Milonas rendered the dismissal harsh, unjust or unreasonable. In particular, it is submitted that the Commissioner’s criticism of the termination process in his decision was ‘far too limited’ and that the unfair fashion in which the exit interview was conducted rendered the dismissal unfair and/or unjust. Ms Milonas contends that the meeting unexpectedly morphed into a termination meeting and that she was entitled to know prior to being asked to explain herself that termination was ‘on the cards’. 15
[24] Telstra contends that Ms Milonas was on notice three days prior to the 23 March meeting that the purpose of the meeting was to review her performance and discuss the consequences. Further, Telstra submits Ms Milonas was not required to perform her usual duties ahead of the meeting and was invited to use that time to prepare for the meeting.
[25] We are not persuaded that the Commissioner erred in the manner contended by the Appellant. It is apparent from the Decision that the Commissioner took into account the substance of the issue raised, so much is clear from the following:
‘[64] The evidence established that the applicant had been provided with an opportunity to respond to the performance inadequacies identified during the 2016 PSA review meeting. In particular, after there had been some detailed examination of the various aspects of the 2016 PSA, Mr Moynahan asked the applicant; “Anything else that you wanted to bring up?” The applicant then provided various additional responses after which the meeting was briefly adjourned. It was clear that the responses provided by the applicant did not satisfy Mr Moynahan.
[65] The approach that the employer adopted for dealing with the circumstances that emerged during the 2016 PSA review meeting on 23 March 2017 must, on balance, attract some criticism. Telstra had implemented performance management processes for the applicant over a protracted period involving more than two years. There was a degree of undue haste in the manner in which the applicant was advised of her dismissal after the resumption of the meeting on 23 March.
[66]Consequently, Telstra could have provided the applicant with a more dignified and less perfunctory means by which it conveyed the decision to dismiss. At the resumption of the meeting the applicant could, and should, have been verbally advised that as a result of the identified outcomes of the 2016 PSA and having regard for the responses provided during the meeting by the applicant and her representatives, it nevertheless intended to implement dismissal. Telstra could, and should, have then provided written confirmation of its intention to dismiss, and granted the applicant what is understood to be a “show cause” process whereby any issues that the applicant wished to raise as a means to dissuade the employer from dismissal could be provided and then carefully examined before a final decision was confirmed.’ 16 [Footnotes omitted]
[26] The above observations were part of the Commissioner’s consideration of s.387(c) (‘whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person’).
[27] Further, at [73], the Commissioner states:
‘[73] In this instance, consideration of the personal circumstances of the applicant, in particular her extensive period of service with Telstra, has been balanced and evaluated together with all of the other relevant considerations. In particular, the personal circumstances of the applicant and the unfortunately perfunctory process adopted by Telstra during the 2016 PSA meeting, have been matters that have been given appropriate weight and balanced against, in particular, the valid reason for dismissal.’
[28] The Commissioner took this matter into account, together with the other s.387 factors, in concluding that Ms Milonas’ dismissal was not harsh, unjust or unreasonable (see [78]). It is not apparent to us that the Commissioner failed to take into account the matter raised by the Appellant, the weight attributed to it was a matter for the Commissioner.
[29] Ground 3 contends that the Commissioner erred in failing to have proper regard to the harshness of the dismissal taking into account Ms Milonas’ length of service, the breadth of her services to the Respondent and her personal circumstances. In particular, the Appellant contends that the Commissioner ‘appears to have discarded’ the evidence concerning her indebtedness.
[30] The Commissioner dealt with Ms Milonas’ personal circumstances at [71] to [73]:
‘[71] The submissions made on behalf of the applicant asserted that the particular personal circumstances of the applicant rendered the dismissal to have been harsh. In particular, the extensive period of employment of over 22 years was said to be a significant factor which when combined with other personal circumstances of the applicant, rendered the dismissal to have been harsh.
[72] Any dismissal after an extensive period of service will usually create difficulties, particularly if the dismissed employee has limited scope for securing alternative employment. The extent to which other personal issues such as the employee’s level of indebtedness can properly contribute to a finding of harshness can present as questionable considerations. There are a variety of personal circumstances over which an employer would have no influence or control, and it would seem to be unreasonable to visit these circumstances detrimentally on the employer.
[73] In this instance, consideration of the personal circumstances of the applicant, in particular her extensive period of service with Telstra, has been balanced and evaluated together with all of the other relevant considerations. In particular, the personal circumstances of the applicant and the unfortunately perfunctory process adopted by Telstra during the 2016 PSA meeting, have been matters that have been given appropriate weight and balanced against, in particular, the valid reason for dismissal.’
[31] The Appellant contends that the Commissioner misstated the law in the last sentence of [72] above and that the determination of whether a termination is harsh ‘is a balancing exercise’. 17 In support of this submission the Appellant relies on the following passage from the judgment of Jenkinson J in Gregory v Philip Morris:18
‘It is in my opinion only a termination which it is harsh of the employer to impose, as well as being harsh in its effect on the employee that contravenes the sub-clause…’
[32] We agree that the assessment of whether a dismissal is harsh involves a balancing exercise, so much is clear from the range of factors the Commissioner is required by s.387 to take into account. But we are not persuaded that the Commissioner erred. The passage referred to by the Appellant was merely an observation, as opposed to a definitive statement of legal principle. It is clear from the opening sentence of [73] that the Commissioner took into account Ms Milonas’ personal circumstances including her personal indebtedness. This is apparent from the use of the words ‘in particular’. The Commissioner then weighed this factor and evaluated all of the other relevant considerations and concluded that the dismissal was not harsh, unjust or unreasonable. In our view the Commissioner’s conclusion was reasonably open to him.
4. Conclusion
[33] The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, as we have mentioned, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)).
[34] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 19 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[35] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 20 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
‘...the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’ 21
[36] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. 22 As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.
[37] We are not persuaded that the Appellant has established that it is in the public interest to grant permission to appeal. We are not persuaded that the Appellant has established an error in the Decision subject to appeal or that there are any other considerations that warrant the grant of permission to appeal. Accordingly, permission to appeal is refused.
PRESIDENT
Appearances:
Mr Rogers, Counsel for the Appellant.
Mr Tamvakologos, Counsel for the Respondent.
Hearing details:
2018.
Melbourne:
February 5.
<PR601384>
1 [2017] FWC 6359.
2 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 Transcript of proceedings, 5 February 2018 at [75]-[77].
4 Exhibit 11 at [82]; Appeal Book page 535.
5 Ibid at [80] and [89]; Appeal Book pages 534 and 536.
6 Exhibit 9 at [30]; Appeal Book page 396.
7 Ibid at [44]; Appeal Book page 399.
8 Exhibit 10 at [8]; Appeal Book page 509.
9 Exhibit 9 at [74]; Appeal Book page 410.
10 Exhibit 12 at [8] and [10], Appeal book pages 650-651.
11 Ibid at [12]; Appeal Book page 652.
12 Exhibit 10 at [10]; Appeal Book page 510; Exhibit 11 at [14]; Appeal Book page 519.
13 (2011) 192 FCR 78 at [25].
14 (2010) 194 IR 259 at [16].
15 Appellant’s outline of submissions, 25 January 2018 at [4.1]-[4.13].
16 [2017] FWC 6359 at [64]-[66].
17 Appellant’s outline of submissions, 25 January 2018 at [5.5]-[5.6].
18 (1988) 24 IR 397 at 403; 80 ALR 455 at 462.
19 (2011) 192 FCR 78 at [43].
20 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44]-[46].
21 (2010) 197 IR 266 at [27].
22 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
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